C. Obligation to directly apply the ECHR (Article II.2 of the BiH Constitution)

2. International Standards

The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.

The rights referred to in the ECHR are directly applicable in Bosnia and Herzegovina. The rights referred to in the ECHR do not require any “act for transformation”, in order to develop their effect in the legal system of BiH. They are directly applicable law. These types of constitutional obligations regarding direct application are unusual. When it comes to the BiH Constitution, on the one hand, this is corroborated by referring to the speed with which the authors of the text of the Constitution were forced to draft provisions on the protection of human rights and fundamental freedoms as part of the peace agreements. However, this legal technique, which was selected for the first time in the Carrington plan,⁵⁹⁸ was subsequently considered purposeful as it was possible to reach a consensus on it, in general, and therefore, it was no longer rejected. In this manner it was possible to have a breakthrough with respect to the practice of the protection of human rights and fundamental freedoms in the former Yugoslavia, which was, for the most part, unknown and questionable to the international negotiators. If the standard catalogue of fundamental human rights and freedoms had been set up without references to the Agreement on the Protection of Human Rights, probably these rights would have been interpreted and applied in accordance with the legal tradition of the region.⁵⁹⁹ Thanks to the selected technique, it was possible in one stroke to “spill” the entire catalogue of rights of the ECHR and instruments of Annex I to the BiH Constitution across Bosnia and Herzegovina, thereby not having to request from the State to fulfil the demanding criteria set by the Council of Europe, which Bosnia and Herzegovina joined only on 12 July 2002. The view espoused in the end is that “the constitution maker” wished to automatically, in an “ultra-monistic” manner, introduce into the national legal system the necessary international law related to fundamental human rights and freedoms, in order to avoid, amid divergent national interests, the complicated procedure of enacting laws.⁶⁰⁰

The obligation to directly apply the ECHR and the instruments of Annex I to the BiH Constitution in Bosnia and Herzegovina is considered purposeful in general, although their application in practice has caused difficulties at times. The application of international legal instruments was hindered by the lack of translation and poor publicity, in support of which Marko⁶⁰¹ provided figurative examples. Indeed, the ECHR, and the instruments referred to in Annex I to the BiH Constitution, were translated by the Council of Europe into the local languages. However, the ECHR was published in the Official Gazette of Bosnia and Herzegovina only in 1999⁶⁰² and it took several more years for ECHR-related materials to appear, such as Reports on judgments and decisions, and manuals, or instructions on the application in local languages. Internationalisation of law, undoubtedly, brings linguistic difficulties. A question arises whether the local legal practitioners are able to successfully do their work of protecting human rights and freedoms because, primarily, they are not familiar with the basic notions of protecting human rights and fundamental freedoms and of a democratic legal state, in a manner constituting the basis of the ECHR and the BiH Constitution, and that the technical problem of translation comes in second. There were individual objections that, due to the obligation of direct

application, there is a threat that the interpretation of the ECHR by domestic bodies could depart from the interpretation by the bodies in Strasbourg, or that the ECHR, otherwise, would not be suitable for application in a post-conflict environment.⁶⁰³ In practice it turned out that the courts tackling issues related to human rights and fundamental freedoms took different paths in individual cases. Accordingly, the citizens of Bosnia and Herzegovina partly received protection of human rights and fundamental freedoms which went beyond the protection offered by the European Court – for which there is good reason considering the requirement specified in Article II.1 of the BiH Constitution – whereas in other cases such protection lagged behind the European Court standard. However, this situation in Bosnia and Herzegovina is probably not different from that in other countries in transition, and even in the states of Western Europe that have a consolidated democracy.

In accordance with the obligation of direct application of Article II.2 of the BiH Constitution, in the subsequent part one should look only at the regulations of the ECHR and additional protocols thereto which contain subjective legal positions.